PRESIDENT'S OFFICE
No. 1877.
20 November 1996
NO. 77 OF 1996: EXTRADITION AMENDMENT ACT, 1996.
It is hereby notified that the President has assented to the following Act
which is hereby published for general information:-
GENERAL EXPLANATORY NOTE:
Words in bold type indicate omissions from existing enactments.
Words in italics indicate insertions in existing enactments.
ACT
To amend the Extradition Act, 1962, so as to add certain definitions and to
amend a definition; to provide for the designation of States to which
extradition may be effected in the absence of formal agreements; to further
provide in respect of persons liable to be extradited; to further provide in
respect of the issuing of warrants of arrest of persons and for further
detention; to grant to the Minister certain powers after a warrant has been
issued; to make further arrangements in connection with the evidence that may
be received by a magistrate at the enquiry of a detained person; to further
regulate the holding of enquiries concerning offences committed in foreign and
associated States; to grant to the Minister the power to refuse extradition
under certain circumstances; and to further regulate the procedure regarding an
appeal by a person against whom an order for extradition has been issued; and
to provide for matters connected therewith.
(English text signed by the President.)
(Assented to 6 November 1996.)
BE IT ENACTED by the Parliament of the Republic of South Africa, as
follows:-
Amendment of section 1 of Act 67 of 1962
1. Section 1 of the Extradition Act, 1962 (hereinafter referred to as the
principal Act), is hereby amended-
(a) by the insertion after the definition of "associated State" of the
following definitions:
" 'designated State' means any foreign State designated by the
President under section 2(1)(b);
'extraditable offence' means any offence which in terms of the law of
the Republic and of the foreign State concerned is punishable with a
sentence of imprisonment or other form of deprivation of liberty for a
period of six months or more, but excluding any offence under military
law which is not also an offence under the ordinary criminal law of the
Republic and of such foreign State;"; and
(b) by the substitution for the definition of "extradition agreement" of the
following definition:
'extradition agreement' means an agreement in force or deemed to be in
force under section 2 including a multilateral convention to which the
Republic is a signatory or to which it has acceded and which has the
same effect as such agreement;".
Amendment of section 2 of Act 67 of 1962, as amended by section 18 of Act 93
of 1963, section 53 of Act 70 of 1968, section 15 of Act 29 of 1974 and section
1 of Act 46 of 1987
2. Section 2 of the principal Act is hereby amended-
(a) by the substitution for subsection (1) of the following subsection:
"(1) The State President may, on such conditions as he or she
may deem fit, but subject to the provisions of this Act-
(a) enter into an agreement with any foreign State, other than a
designated State, providing for the surrender on a reciprocal
basis of persons accused or convicted of the commission within the
jurisdiction of the Republic or such State or any territory under
the sovereignty or protection of such State, of an extraditable
offence or offences specified in such agreement and may likewise
agree to any amendment or revocation of such agreement; and
(b) designate any foreign State for purposes of section 3(3), and
may at any time amend the conditions to which such designation was
subjected to or revoke such designation.";
(b) by the deletion of subsection (2);
(c) by the substitution for the words preceding paragraph (a) of subsection
(3) of the following words:
"No such agreement or designation or any amendment thereof, or
revocation of the designation, shall be of any force or effect-";
(d) by the substitution for paragraph (a) of subsection (3) of the following
paragraph:
"(a) until it has been published by the State President by proclama-
tion in the Gazette the ratification of, or accession to, or
amendment or revocation of such agreement or designation has been
agreed to by Parliament; or";
(e) by the deletion of paragraph (b) of subsection (3);
(f) by the insertion after subsection (3)bis of the following subsection:
"(3)ter The Minister shall as soon as practicable after Parliament has
agreed to the ratification of, or accession to, or amendment or
revocation of an agreement or the designation of a foreign State, give
notice thereof in the Gazette."; and
(g) by the deletion of subsection (5).
Amendment of section 3 of Act 67 of 1962
3. Section 3 of the principal Act is hereby amended-
(a) by the substitution for subsection (2) of the following subsection:
" (2) Any person accused or convicted of an offence contemplated by
subsection (2) of section two and extraditable offence committed
within the jurisdiction of a foreign State which is not a party to
an extradition agreement shall be liable to be surrendered to such
foreign State, if the State President has in writing consented to
his or her being so surrendered."; and
(b) by the addition of the following subsection:
"(3) Any person accused or convicted of an extraditable offence
committed within the jurisdiction of a designated State shall be liable
to be surrendered to such designated State, whether or not the offence
was committed before or after the designation of such State and whether
or not a court in the Republic has jurisdiction to try such person for
such offence.".
Amendment of section 5 of Act 67 of 1962
4. Section 5 of the principal Act is hereby amended by the substitution for
paragraph (b) of subsection (1) of the following paragraph:
"(b) upon such information of his or her being a person liable to
be surrendered to a foreign State accused or convicted of an
extraditable offence committed within the jurisdiction of a foreign
State, as would in the opinion of the magistrate justify the issue
of a warrant for the arrest of such person, had it been alleged that
he or she committed an offence in the Republic.".
Amendment of section 7 of Act 67 of 1962
5. Section 7 of the principal Act is hereby amended by the substitution for
subsection (2) of the following subsection:
"(2) Such a warrant for the further detention of any person may be
issued upon such information of his or her being a person
liable to be surrendered to a foreign State accused or
convicted of an extraditable offence committed within the
jurisdiction of a foreign State, as would in the opinion of the
magistrate justify the issue of a warrant for the arrest of such
person, had it been alleged that he or she committed an offence
in the Republic.".
Amendment of section 8 of Act 67 of 1962
6. Section 8 of the principal Act is hereby amended by the addition of the
following subsection, the existing section becoming subsection (1):
"(2) The Minister may at any time after having been notified that a
warrant has been issued as contemplated in subsection (1)-
(a) in the case where the warrant has not yet been executed, direct
the magistrate concerned to cancel the warrant; or
(b) in the case where the warrant has been executed, direct that the
person who has been arrested be discharged forthwith, if the
Minister is of the opinion that a request for the extradition of the
person concerned is being delayed unreasonably, or for any other
reason that the Minister may deem fit.".
Amendment of section 9 of Act 67 of 1962, as amended by section 2 of Act 46
of 1987
7. Section 9 of the principal Act is hereby amended-
(a) by the substitution for the words preceding paragraph (a) of subsection
(3) of the following words:
"Any deposition, statement on oath or affirmation taken, whether or not
taken in the presence of the accused person, or any record of any
conviction or any warrant issued in a foreign State, or any copy or
sworn translation thereof, may be received in evidence at any such
enquiry if such document is-"; and
(b) by the substitution for paragraph (a) of subsection (3) of the following
paragraph:
(a) (i) accompanied by a certificate according to the example set out
in Schedule B;
(ii) authenticated in the manner foreign documents may be
authenticated to enable them to be produced in any court in the
Republic or in the manner provided for in the extradition
agreement concerned; or
(iii) authenticated by the signature and-seal of office-
(aa) of the head of a South African diplomatic or consular
mission or a person in the administrative or professional
division of the public service serving at a South African
diplomatic, consular or trade office in a foreign State or
a South African foreign service officer grade VII or an
honorary South African consul-general, vice-consul or trade
commissioner;
(bb) of any government authority of such foreign State charged
with the authentication of documents in terms of the law of
that foreign State;
(cc) of any notary public or other person in such foreign State
who shall be shown by a certificate of any person referred
to in item (aa) or (bb) or of any diplomatic or consular
officer of such foreign State in the Republic to be duly
authorized to authenticate such document in terms of the
law of that foreign State; or
(dd) of a commissioned officer of the South African National
Defence Force in the case of a document executed by a
person on active service; or".
Substitution of section 10 of Act 67 of 1962
8. The following section is hereby substituted for section 10 of the
principal Act:
"Enquiry where offence committed in foreign State
10. (1) If upon consideration of the evidence adduced at the enquiry
referred to in section 9(4)(a) and (b)(i) the magistrate finds that the
person brought before him or her is liable to be surrendered to the
foreign State concerned and, in the case where such person is accused of an
offence, that there would be sufficient reason for putting him on trial
for the offence had it been committed in the Republic is sufficient
evidence to warrant a prosecution for the offence in the foreign State
concerned, the magistrate shall issue an order committing such person to
prison to await the Minister's decision with regard to his or her
surrender, at the same time informing such person that he or she may
within 15 days appeal against such order to the Supreme Court.
(2) For purposes of satisfying himself or herself that there is
sufficient evidence to warrant a prosecution in the foreign State the
magistrate shall accept as conclusive proof a certificate which appears to
him or her to be issued by an appropriate authority in charge of the
prosecution in the foreign State concerned, stating that it has sufficient
evidence at its disposal to warrant the prosecution of the person
concerned.
(2) (3) If the magistrate finds that the evidence does not
warrant the issue of an order of committal or that the required evidence is
not forthcoming within a reasonable time, he shall discharge the person
brought before him.
(3) (4) The magistrate issuing the order of committal shall
forthwith forward to the Minister a copy of the record of the proceedings
together with such report as he may deem necessary.".
Substitution of section 11 of Act 67 of 1962
9. The following section is hereby substituted for section II of the
principal Act:
"Minister may order or refuse surrender to foreign State
11. The Minister may-
(a) order any person committed to prison under section 10 to be
surrendered to any person authorized by the foreign State to receive
him or her; or
(b) order that a person shall not be surrendered-
(i) where criminal proceedings against such person are pending in
the Republic, until such proceedings are concluded and where
such proceedings result in a sentence of a term of imprisonment,
until such sentence has been served;
(ii) where such person is serving, or is about to serve a sentence of
a term of imprisonment, until such sentence has been completed;
(iii) at all, or before the expiration of a period fixed by the
Minister, if he or she is satisfied that by reason of the
trivial nature of the offence or by reason of the surrender not
being required in good faith or in the interests of justice, or
that for any other reason it would, having regard to the
distance, the facilities for communication and to all the
circumstances of the case, be unjust or unreasonable or too
severe a punishment to surrender the person concerned; or
(iv) if he or she is satisfied that the person concerned will be
prosecuted or punished or prejudiced at his or her trial in the
foreign State by reason of his or her gender, race, religion,
nationality or political opinion.".
Substitution of section 12 of Act 67 of 1962
10. The following section is hereby substituted for section 12 of the
principal Act:
"Enquiry where offence committed in associated State
12. (1) If upon consideration of the evidence adduced at the enquiry
referred to in section 9(4)(b)(ii) the magistrate finds that the person
brought before him or her is liable to be surrendered to the associated
State concerned, the magistrate shall, subject to the provisions of
subsection (2), issue an order for his or her surrender to any person
authorized by such associated State to receive him or her at the same
time informing him or her that he or she may within 15 days appeal
against such order to the Supreme Court.
(2) If the magistrate is of the opinion that The magistrate may
order that the person brought before him or her shall not be surrendered-
(a) where criminal proceedings against such person are pending in the
Republic, until such proceedings are concluded and where such
proceedings result in a sentence of a term of imprisonment, until such
sentence has been served;
(b) where such person is serving, or is about to serve a sentence to a term
of imprisonment, until such sentence has been completed; or
(c) at all, or before the expiration of a period fixed by him or her, or
make such order as to him or her seems just if he or she is of the
opinion that-
(i) by reason of the trivial nature of the offence or by reason of the
surrender not being required in good faith or in the interests of
justice, or that for any other reason it would, having regard for
the distance, the facilities for communication and to all the
circumstances of the case, be unjust or unreasonable or too severe
a punishment to surrender the person required to be surrendered
either at all or until the expiration of a certain period, the
magistrate may discharge such person or order that he shall not be
surrendered until after the expiration of a period stated in such
order or may make such other order as to the magistrate seems just
concerned; or
(ii) the person concerned will be prosecuted or punished or prejudiced
at his or her trial in the associated State by reason of his or her
gender, race, religion, nationality or political opinion.
(3) If the magistrate finds that the evidence does not warrant the issue
of an order under subsection (1) or that the required evidence is not
forthcoming within a reasonable time and the delay is not caused by the
person brought before him or her, he or she shall discharge the
that person brought before him.".
Amendment of section 13 of Act 67 of 1962
11. Section 13 of the principal Act is hereby amended by the addition of
the following subsections:
"(3) Any person who has lodged an appeal in terms of subsection (1) may
at any time before such appeal has been disposed of, apply to the magistrate
who issued the order in terms of section 10 or 12 to be released on bail on
condition that such person deposits with the clerk of court, or with a
member of the Department of Correctional Services, or with any police
official at the place where such person is in custody, the sum of money
determined by the magistrate.
(4) If the magistrate orders that the applicant be released on bail in
terms of subsection (3), the provisions of sections 66, 67, 68 and 307(3),
(4) and (5) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), shall
mutatis mutandis apply to bail so granted, and any reference in those
sections to-
(a) the prosecutor who may act under those sections, shall be deemed to be a
reference to such person who may appear at an enquiry held under this
Act;
(b) the accused, shall be deemed to be a reference to the person released on
bail under subsection (3);
(c) the court, shall be deemed to be a reference to the magistrate who
released such person on bail; and
(d) the trial or sentence, shall be deemed to be a reference to the
magistrate's order under section 10 or 12.".
Addition of Schedule B to Act 67 of 1962
12. The following Schedule is hereby added to the principal Act, the
existing Schedule becoming Schedule A.
"Schedule B (section 9(3)(a)(i))
Apostille
(Convention de la Haye du 5 Octobre 1961)
1. Country.................................................
This public document
2. has been signed by......................................
3. acting in the capacity of...............................
4. bears the seal/stamp of.................................
5. at......................................................
6. the (date)..............................................
7. by......................................................
8. No. ....................................................
9. Seal/stamp: 10. Signature...............
.................... ...............
.................... ...............
....................".
Amendment of section 23 of Act 67 of 1962
13. Section 23 of the principal Act is hereby amended by the substitution
for the word "Schedule" of the expression "Schedule A".
Transitional provisions
14.(1) Any enquiry pending before a magistrate in terms of section 9(1) of$
the principal Act, immediately before the commencement of this Act, shall be
continued and concluded as if this Act has not been passed.
(2) For the purposes of subsection (1) an enquiry shall be deemed to be
pending if the magistrate has proceeded with the enquiry as contemplated in
section 9(2) of the principal Act, and it shall be deemed to have been
concluded if the magistrate -
(a) has issued an order referred to in section 10(1) or 12(1) or (2); or
(b) has discharged a person in terms of section 10(3) or 12(3), of the
principal Act.
Short title and commencement
15. This Act shall be called the Extradition Amendment Act, 1996, and shall
come into operation on a date fixed by the President by proclamation in the
Gazette.